Gay Prosecutor Rejected for Virginia Judgeship

By Stephanie Rabiner, Esq. on
May 17, 2012 5:02 AM

Being an openly gay judge in Virginia wasn't in the cards for Richmond prosecutor Tracy Thorne-Begland. The House of Delegates rejected his nomination earlier this week despite years as a public servant and his status as a former Navy pilot.

The reason? According to Del. Robert G. Marshall, who is running for U.S. Senate, Thorne-Begland's "life is a contradiction to the requirement of submission to the constitution." The prosecutor considers himself to be married even though same-sex marriage is not legal in Virginia. Marshall also charges him with pursuing an "aggressive activist homosexual agenda."

Some conservatives also claim his support for gay marriage and the repeal of "Don't Ask, Don't Tell" make him unfit for the bench, reports the Washington Post. Still, they insist their problem isn't with having a gay judge in Virginia, but with having a judge who so openly supports gay rights.

There's no doubt that how judges conduct themselves in their personal lives is relevant. However, a look at judicial ethics rules indicates that it only matters when a judge shows a marked propensity towards bias. Judges express their political views all the time. Few of them are disciplined for doing so. Many issue rulings contrary to their personal beliefs.

Unless legislators believe Thorne-Begland can't properly separate his personal beliefs from the law in this manner, supporters charge that they had no valid reason to deny him a vote.

This situation is reminiscent of claims made against Judge Vaughn Walker, who ruled against California's Proposition 8. Gay marriage opponents appealed, arguing that a gay judge cannot rule on issues of gay rights. The Ninth Circuit disagreed.

The court ultimately felt that being gay doesn't automatically make a judge apply the law with a pro-gay bias. Tracy Thorne-Begland appears to understand this. Virginia lawmakers? Not so much.